By Dan Schulte, J.D.
MDA Legal Counsel
From the March 2008 issue of the Journal
Question: I recently treated a patient with Blue Cross Blue Shield of Michigan (BCBSM) dental insurance. I have never participated with BCBSM. I cashed a BCBSM check in partial payment of my fee. When I attempted to collect the balance from the patient she told me I had to write the balance off. I went back and looked at the BCBSM check and I now see that it contains a notation telling me that by cashing the check I am agreeing to accept the amount of the check as payment in full and that I am waiving my right to collect the balance owed from the patient except for BCBSM’s approved co-payments and deductibles. Am I now forced to accept the BCBSM-approved amount for all its insureds?
Answer: No. Michigan law allows dentists to participate with BCBSM on a per-claim basis. By cashing the BCBSM check you have not elected to participate with BCBSM for any future services.
Arguably, a contract was formed between you and BCBSM regarding the fee for the services you provided to this BCBSM patient. Your act of cashing the check — knowing it said the amount was payment in full — constituted acceptance of BCBSM's terms for this service (i.e., acceptance of the BCBSM fee and waiver of the right to balance-bill). Even if you didn't notice it at the time, you likely would be charged with knowledge of the notation on the check by a court or jury. In the future, if you wish to be able to balance-bill a BCBSM insured, do not cash the BCBSM check. Instead, either return the check to BCBSM or endorse the echeck to the patient. Either way, insist on a full payment from the patient.
Question: I have a 17-year-old patient. He is a heavy tobacco user. Based on my examination I suspect he is developing dental problems as a result of his tobacco use and other lifestyle choices. I have spoken to him but have not yet spoken to his parents. Can I legally disclose information I have obtained as a result of my examination and express my concerns to his parents? Can I be held liable in some way if I do not?
Answer: Michigan’s Medical Records Access Act (MCL Section 333.26261 et. seq.) defines "patient" to include a minor child’s parent, legal guardian or a person acting in loco parentis. As a result, your patient’s parents are entitled to access to his dental records the same as if they were the patient. Legally, you are free to discuss the results of your examination, treatment recommendations and other concerns with the parents.
Whether you can be held liable for not making disclosures is a more difficult question. Certainly, if the parents ask for the information you are legally obligated to provide it and might be subject to some liability if you refuse. How you could become liable in the absence of a parent’s request is a more difficult question to answer. A claim of malpractice might be made against you if the patient were to suffer some adverse effect (such as develop oral cancer) related to the heavy tobacco use you observed but did not disclose. However, the fact that the parent made no inquiries would be an important mitigating factor in your defense.
Question: In reviewing invoices from a dental products supplier I noticed I have been charged sales tax on both the products and the shipping charges. Should I be paying sales tax on anything other than the cost of the products?
Answer: Michigan’s Sales Tax Act requires sellers to charge a 6 percent tax on the sales price of the item sold. The definition of "sales price" includes "delivery charges incurred or to be incurred before completion of the transfer of ownership of tangible personal property from the seller to the purchaser." Therefore, sellers are required to add the shipping charges to the cost of the products when computing the sales tax.